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Court rejects "wild land" wind turbine permission challenge

31 August 2017

A Court of Session judge has rejected a challenge by countryside campaigners to a decision to allow a 22-turbine wind farm project in Sutherland to go ahead, even though part of it is to be erected on land designated as a wild land area.

Danish billionaire Anders Povlsen, who owns several estates in Scotland, had petitioned the court through his company Wildland Ltd to reduce a decision of the Scottish ministers to grant planning and other consents for the Creag Riabhach wind farm on the Altnaharra estate in Sutherland. Five of the turbines would be erected on a designated wild land area, and although the rest of the site was not subject to any special environmental designation, the immediate and wider surrounding areas included sites of special scientific interest, a special area of conservation, special protection areas, natinal scenic areas and special landscape areas. The proposal was also opposed by bodies including Scottish Natural Heritage (SNH) and the John Muir Trust. 

The decision letter stated “that significant impacts on the physical attributes of the wild land area will be limited in extent relative to the scale of the wild land areas”; that the effects on the wild land area could not be overcome by further re-design or re-siting of the turbines; and that although it was recognised that the siting of the five turbines ran contrary to particular planning policies, the benefits of the development – which will have a generating capacity exceeding 50MW – outweighed the negative impacts. 

Before the court it was argued that ministers had failed to give proper adequate and intelligible reasons, first, in respect of the rejection of SNH’s advice in respect of landscape and visual impact, and secondly, in relation to the special protection to be afforded to areas of wild land and the circumstances in which development was acceptable.

Lord Boyd of Duncansby however dismissed the petition. "In my opinion, looking at the letter as a whole it cannot be said that Scottish ministers have failed to give proper, adequate and intelligible reasons for reaching their conclusion in respect of landscape and visual impact", he said in his judgment. "The fact that ministers have preferred the views and opinion of [Highland Council] to those of SNH cannot be a matter of criticism, provided that ministers have given proper, adequate and intelligible reasons in reaching their decision. Given the relatively brief nature of the advice from SNH, the fact that their views were taken into account in [the council's] appraisal, the comprehensive nature of that appraisal and the clear and cogent terms of the decision letter I am not satisfied that there was in this case any obligation to separately set out reasons for not accepting the advice from SNH."

As regards wild land status he continued: "Apart from pointing out that the earlier decisions were refusals and that this was the first one where permission had been granted, where there had been considerations of wild land, the petitioners have not put forward any particular reason for suggesting that these decisions were material considerations in this case... the developments are of different sizes, in different locations, each with their own location specific issues and environmental statements. The impact on wild land will differ one from the other and the potential benefits of the developments will also no doubt differ. It is not for the court to make assessments as to why decisions on individual applications might reach different results. These are planning judgments for ministers on the facts of each case applying the policy in force at the time."

Lord Boyd concluded: "In my opinion, there is no error of law either in the way in which they reached their decision or expressing their reasons for it. In short the petitioners’ position appears to be that no wind farm development whatsoever should be allowed on designated wild land areas. That may be, but that is a political decision and not one for the courts."

Click here to view the opinion.

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